Should California amend its Constitution?

On Same-Sex Marriage Say 'no' to the Brave New World

Douglas W. Kmiec

Published
4:00 am PDT, Friday, June 13, 2008

The California ballot initiative intended to set aside the state Supreme Court's judicial invention of same-sex marriage deserves public support. Maybe it is enough to say, as many do in conversation, that it merely re-secures a millennia of tradition and common sense. The initiative will restore to the people what was wrongfully taken from them: the right of self-governance and respect for the marital institution.

The initiative is simple: adding to the state Constitution the traditional man/woman definition of marriage that exists in virtually every state - and that the people approved in statutory form by more than 61 percent in 2000.

Because an affirmative vote is obviously intended to reverse the recent 4-3 opinion that wrongly overruled the people, the supporting ballot explanation should retain this simplicity. To avoid litigation, however, that explanation should explicitly indicate the effect of passage as reversing both the decision and reasoning of the court. Were the initiative to be narrowly portrayed in the ballot pamphlet as only denying that same-sex marriage is a fundamental right, the overly litigious would be tempted to argue that the court's additional holding that sexual orientation is a suspect class was untouched by the balloting, leaving an avenue to block the people's will yet again. The state Attorney General and Secretary of State should not allow this judicially active mischief.

Voting to overturn the court's ruling should not be misunderstood. Gay and lesbian individuals are within the humanity acknowledged to be created equal and worthy of respect in the Declaration of Independence, but that responsible reaffirmation of equality of citizenship does not deprive the community of making a necessary and reasoned distinction for its own survival.

Beyond correcting the court's disregard of the separation of powers, insisting upon preserving the link between marriage and procreation: 1) promotes the orderly continuation of the species; 2) avoids the uncertainties of single-gender effects on children (most parents readily recognize the distinctive contributions of male and female in child rearing); and 3) takes respectful account of the difficulties of accommodating religious freedom that arise subsequent to the legal acceptance of same-sex marriage. Oddly, and incompletely, the California Supreme Court managed to ignore these important issues in its 170-plus page opinion.

The proponents of same-sex marriage insist that inventing gay and lesbian marriage harms no one, but the above concerns suggest otherwise. Moreover, it overlooks the national and global decline in fertility, which threatens the economies of Europe and contributes to the weakness of our own. To say, as its advocates do, that the availability of same-sex marriage is not the principal cause of this decline in terms of absolute numbers is a fair point, but giving state approval to non-procreative marriage cannot be denied as a contributing cause to the decline of families with natural children.

Separating marriage from procreation may also have other remote, but frightening, ill consequences. Society should be skeptical of wider use of asexual procreation. An earlier dark moment in U.S. history employed eugenics to forcibly sterilize the mentally disabled. The push for artificial wombs and the genetic manipulation of intelligence already peppers scientific literature - a push that would no doubt grow, accommodating even the minimal same-sex desire for simulating natural child birth - claimed to be of interest for 20-30 percent of same-sex couples. When carefully assessed, the acquisition of unnatural reproductive means often advances the interests of the very affluent through a libertarian exercise that would threaten all hope of democratic equality.

In a depopulating world, the claim that there is a universal right to marry regardless of gender becomes a frightening ally of a claimed universal right to access to genetically engineered children. People should reject this claim by returning traditional marriage to its rightful place.